Telangana High Court
The Apsrtc, Hyd vs Shaik Afsar Begum, Nalgonda Dist And 4 ... on 25 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.543 of 2017 and 1907 of 2019
COMMON JUDGMENT:
1. These Motor Accident Civil Miscellaneous Appeals are
directed against order and decree dated 09.07.2015 on the file of
the Chairman, Motor Accident Claims Tribunal, Special Judge for
Trial of cases under Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act cases-cum-Additional District and
Sessions Judge at Nalgonda and FAC Judge, Family Court-cum-
Additional District Judge, Nalgonda (hereinafter referred to as
'Tribunal'). The said claim petition was filed by the petitioners
therein seeking compensation for death of one Shaik Ilias
(hereinafter referred to as 'deceased') and the same was allowed
granting compensation of Rs.6,58,000/-. Aggrieved by the said
order, respondent No.1 before the Tribunal has filed
M.A.C.M.A.No.543 of 2017 seeking to set aside the impugned
order and dismiss the claim petition and respondent No.2 before
the Tribunal filed M.A.C.M.A.No.1907 of 2019 seeking
enhancement of compensation granted by the Tribunal. Since
both the appeals are arising out of same order and decree, they
are being dealt with by way of this common judgment. 2
MGP,J MACMA_543_2017 & MACMA_1907_2019
2. The petitioners before the Tribunal are respondent Nos.1 to
4 in M.A.C.M.A.No.543 of 2017 and respondent Nos.2 to 5 in
M.A.C.M.A.No.1907 of 2019. Respondent No.1 before the Tribunal
is appellant in M.A.C.M.A.No.543 of 2017 and respondent No.1 in
M.A.C.M.A.No.1907 of 2019. Respondent No.2 before the Tribunal
is respondent No.5 in M.A.C.M.A.No.543 of 2017 and appellant in
M.A.C.M.A.No.1907 of 2019. For the sake of convenience, the
parties are hereinafter referred to as they were arrayed before the
Commissioner.
3. It is the case of the petitioners that petitioner No.1 is
mother, petitioner No.2 is brother, petitioner Nos.3 and 4 are
sisters and respondent No.2 is wife of the deceased. The deceased
was auto driver and on 27.07.2006, he was proceeding in his auto
bearing No.AP 24 W 565 from Mallepally to Nalgonda. On the said
day, at about 07:30 PM, when he reached Parvathgiri village of
Kangal Mandal, APSRTC bus bearing No.AP 10 Z 6794 came in
opposite direction in rash and negligent manner at high speed and
dashed the auto of the deceased. The auto of the deceased was
dragged to some distance, as a result of which the deceased 3 MGP,J MACMA_543_2017 & MACMA_1907_2019
sustained grievous injuries and died on the spot. In this regard, a
cases was registered against the driver of APSRTC bus bearing
No.AP 10 Z 6794 in Crime No.92 of 2006 for the offence under
Section 304-A of the Indian Penal Code, 1860 on the file of Police
Station Kanagal.
4. It is further case of the petitioners that the deceased was
aged about 25 years as on the date of the accident and he was
earning an amount of Rs.5,000/- per month on an average as
owner-cum-driver of the auto bearing No.AP 24 W 565. The
deceased used to contribute the entire amount to the petitioners,
who are his dependents. Further, respondent No.2, who is wife of
the deceased, left the house of the petitioners immediately after
the death of the deceased and she is residing with her parents.
Hence, the petitioners filed the present claim petition seeking
compensation of Rs.3,00,000/- from respondent No.1.
5. Respondent No.1 filed its counter denying the averments of
the claim petition such as age, manner of the accident, income of
the deceased and ownership of the auto involved in the accident.
It is contended by respondent No.1 that there was no negligence 4 MGP,J MACMA_543_2017 & MACMA_1907_2019
on the part of the driver of RTC bus and the accident occurred due
to rash and negligent driving of the deceased. It is also denied
that the petitioners are only legal heirs of the deceased. It is also
contended that the compensation claimed is excess and exorbitant
and prayed to dismiss the claim petition.
6. Respondent No.2 filed counter admitting her relationship
with the deceased as well as the petitioners. She also admitted
the age, occupation, income of the deceased and death of the
deceased in an accident that occurred on 27.07.2006. However,
she contended that the deceased with his income used to
maintain petitioner Nos.1 and 4 and respondent No.2 only.
Petitioner Nos.2 and 3 were also earning for their maintenance
and pursuing their studies independently. She denied that she
left the petitioners after the death of the deceased and started to
reside with her parents. In fact, the petitioners never informed
her about filing of the present claim petition with mala fide
intention. It is her case that she being the wife of the deceased is
entitled for major amount of compensation as she has no other
source of income.
5
MGP,J MACMA_543_2017 & MACMA_1907_2019
7. In support of their case, the petitioners got examined P.W.1
and got marked Exs.A-1 to A-6. No evidence was adduced by both
the respondents.
8. On the basis of the above pleadings, the following issues
were framed by the Commissioner:
"1. Whether Shaik Iliyas died in the road accident?
2. Whether the petitioners are entitled to claim compensation, if so, to what amount and from whom?
3. To what relief?"
9. After considering the pleadings and evidence on record, the
Tribunal held that the petitioners have successfully proved their
case. Hence, the claim petition was allowed holding that
respondent No.1 is liable to pay compensation and granted an
amount of Rs.6,58,000/- towards compensation payable to the
petitioners as well as respondent No.2.
10. Heard both sides.
11. Learned counsel for the respondent No.1/appellant in
M.A.C.M.A.No.543 of 2017 contended that the Tribunal failed to
consider that there was no negligence on the part of the driver of 6 MGP,J MACMA_543_2017 & MACMA_1907_2019
the RTC bus driver and it is the deceased, who drove his auto in
rash and negligent manner and caused the accident. It is also
contended that the Tribunal erred in considering the age of the
deceased and income of the deceased and granted compensation
amount and interest on higher side. It is also contended that the
claim petition is liable to be dismissed for non-joinder of the
insurance company under which the auto of the deceased was
insured with. Hence, prayed to allow the appeal and set aside the
impugned order and decree.
12. On the other hand, the learned counsel for respondent
No.2/appellant in M.A.C.M.A.No.1907 of 2019 contended that the
Tribunal has determined the income of the deceased on lower side
and further, future prospects have also not been awarded. It is
also contended that the Tribunal did not consider granting
amount towards loss of consortium and also granted funeral
expenses on lower side. It is mainly contended that the Tribunal
has apportioned less amount of compensation towards the share
of respondent No.2, who is wife of the deceased. Hence, prayed to
allow the appeal and enhance the compensation granted by the
Tribunal and also apportion more amounts towards her share. 7
MGP,J MACMA_543_2017 & MACMA_1907_2019
13. Per contra, the learned counsel for petitioners/respondent
Nos.1 to 4 in M.A.C.M.A.No.543 of 2017 and respondent Nos.2 to
5 in M.A.C.M.A.No.1907 of 2019 contended that the Tribunal after
considering all the aspects has granted just and reasonable
compensation and also apportioned right amounts to the
petitioners as well as respondent No.2. Hence, interference of this
Court is unwarranted, as such prayed to dismiss both the
appeals.
14. Now the point for determination is as follows:
"1. Whether the Tribunal has granted compensation on higher side as contended by the respondent No.1?
2. Whether respondent No.2 is entitled for enhancement of compensation granted by the Tribunal as prayed for?"
Point Nos.1 and 2:
15. This Court has perused the entire evidence and material
placed on record. Petitioner No.1 was examined as P.W.1 and she
got marked Exs.A-1 to A-6, in support of the case of the
petitioners. P.W.1 is mother of the deceased and she filed her
evidence affidavit reiterating the contents of the claim petition. 8
MGP,J MACMA_543_2017 & MACMA_1907_2019
Though, she was cross-examined, nothing contrary was elicited in
the same.
16. It is pertinent to state that Ex.A-1 copy of First Information
Report, Ex.A-2 copy of inquest report, Ex.A-3 post mortem
examination report and Ex.A-4 copy of charge sheet clearly
discloses that the deceased was proceeding in his auto bearing
No.AP 24 W 565 from Mallepally to Nalgonda, on 27.07.2006 and
at about 07:30 PM, when he reached at Parvathgiri village of
Kangal Mandal, one APSRTC bus bearing No.AP 10 Z 6794 came
in opposite direction in rash and negligent manner in high speed
and dashed the auto of the deceased. Due to the said accident,
the deceased sustained injuries and died on the spot. The said
documents clearly establish the occurrence of the accident,
involvement of APSRTC bus bearing No.AP 10 Z 6794 driven by its
driver and also death of the deceased in the said accident.
17. It is also pertinent to state that the Police Kanagal have
registered FIR under Ex.A-1 and after thorough investigation filed
charge sheet under Ex.A-4. The said documents disclose that
police filed charge sheet only against the driver of RTC bus and 9 MGP,J MACMA_543_2017 & MACMA_1907_2019
not against any other persons. This clearly shows that there was
no negligence on the part of the deceased in the occurrence of the
accident and the negligence was only attributed to the RTC bus
driver. If, there was any rash and negligent driving by the
deceased, the police would not have registered the crime and laid
charge sheet only against the driver of RTC bus. Furthermore,
respondent No.1 has not adduced any evidence and failed to
examine any eyewitness before the Tribunal to prove that the
deceased was driving his auto in rash and negligent manner and
that he contributed for occurrence of the accident. In the said
circumstances, this Court is of the considered opinion that the
Tribunal after considering all the aspects and attributed
negligence to the RTC bus driver alone and interference of this
Court into the said findings is unwarranted. Hence, the
contention of the learned counsel for respondent No.1/appellant
in M.A.C.M.A.No.543 of 2017 that the Tribunal failed to consider
that there was no negligence on the part of the driver of the RTC
bus and it is the deceased, who drove his auto in rash and
negligent manner and caused the accident is unsustainable and
the same is rejected.
10
MGP,J MACMA_543_2017 & MACMA_1907_2019
18. Learned counsel for respondent No.1/appellant in
M.A.C.M.A.No.543 of 2017 also contended that the claim petition
is liable to be dismissed for non-joinder of the insurance company
under which the auto of the deceased was insured. It is evident
from the material on record that the accident was caused due to
the negligence of the RTC bus driver and it is not the case of
contributory negligence. In the said circumstances, the petitioner
need not make the insurance company under which the auto of
the deceased was insured, as party and they are entitled to claim
compensation only from respondent No.1 for the negligence of its
RTC bus driver. Hence, the said contention is also unsustainable.
19. It is further contended by the learned counsel for respondent
No.1/appellant in M.A.C.M.A.No.543 of 2017 that the Tribunal
erred in considering the age and income of the deceased. On
contrary, the learned counsel for respondent No.2/appellant in
M.A.C.M.A.No.1907 of 2019 contended that the Tribunal has
determined the income of the deceased on lower side. A perusal of
the evidence on record shows that the petitioners contended that
the deceased was earning an amount of Rs.5,000/- per month by 11 MGP,J MACMA_543_2017 & MACMA_1907_2019
working as driver-cum-owner of the auto involved in the accident.
The Tribunal as the petitioners have not placed any evidence on
record to prove that the deceased was earning an amount of
Rs.5,000/- per month has considered the notional income of the
deceased i.e., Rs.4,000/- per month, while calculating the
compensation. This Court is of the considered opinion that the
same is just and reasonable and interference of this Court is
unwarranted. The evidence placed by the petitioners on record
shows that the deceased was aged about 25 years as on the date
of accident. Further, as there is no contrary evidence placed on
record by respondent No.1, the Tribunal has considered the same
while determining compensation. This Court finds no reason to
interfere into the same.
20. Learned counsel for respondent No.2/appellant in
M.A.C.M.A.No.1907 of 2019 contended that the Tribunal has not
considered future prospects of the deceased while calculating the
compensation and further, no amount was granted toward loss of
consortium and also granted meager amount towards funeral
expenses. On the contrary, learned counsel for respondent
No.1/appellant in M.A.C.M.A.No.543 of 2017 contended that the 12 MGP,J MACMA_543_2017 & MACMA_1907_2019
Tribunal has granted compensation on higher side. While so, the
learned counsel for petitioners contended that the Tribunal has
awarded right amount of compensation in correct apportionments
and interference of this Court is unwarranted.
21. Admittedly, the Tribunal has not granted any amount
towards future prospects of the deceased. The monthly salary of
the deceased is considered at Rs.4,000/- per month. He was 25
years as on the date of the accident, in view of the decision of the
Apex Court in National Insurance Company Limited Vs. Pranay
Sethi and others 1, 40% towards future prospects can duly be
added to the established income of the deceased. Thus, the future
monthly income of the deceased comes to Rs.5,600/- [Rs.4,000/-
+ Rs.1,600/-(40% of Rs.4,000/-)]. Since the petitioners are four in
number and respondent No.2 is also wife of the deceased. There
are total five dependents of the deceased, as per the decision of
the Apex Court in the case of Sarla Varma v. Delhi Transport
Corporation and another 2, 1/4th has to be deducted towards
personal and living expenses of the deceased. After deducting,
1 2017 ACJ 2700 2 2009 (6) SCC 121 13 MGP,J MACMA_543_2017 & MACMA_1907_2019
1/4th of the monthly income of Rs.5,600/-, the monthly income
comes to Rs.4,200/- [Rs.5,600/- - Rs.1,400/- (1/4th of Rs.5,600/-
)]. Further, as per Sarla Varma (cited 2nd supra), the appropriate
multiplier is '18' as the deceased was 25 years old at the time of
the accident. Thus, applying the multiplier '18', the total loss of
dependency comes to Rs.9,07,200/- (Rs.4,200/- X 12 months X
18). In addition to that, respondent No.2 being the wife of the
deceased is entitled to Rs.77,000/- under the conventional heads
(Rs.70,000/- + 10% enhancement thereon). Hence, in all the total
quantum of compensation comes to Rs.9,84,200/-. The Tribunal
has granted an amount of Rs.6,58,000/- towards compensation
including Rs.10,000/- towards funeral expenses. Hence, the
same is enhanced to Rs.9,84,200/-.
22. Coming to the apportionment of the compensation among
the petitioners and respondent No.2, the learned counsel for
respondent No.2/appellant in M.A.C.M.A.No.1907 of 2019
contended that the Tribunal has apportioned less amount of
compensation towards the share of respondent No.2, who is wife
of the deceased and has apportioned higher amount towards the
petitioners.
14
MGP,J MACMA_543_2017 & MACMA_1907_2019
23. Admittedly, from the compensation amount of Rs.6,58,000/-
granted by the Tribunal, the Tribunal has apportioned
Rs.1,58,000/- to petitioner No.1, who is mother of the deceased,
Rs.2,00,000/- to respondent No.2 and Rs.1,00,000/- each to
petitioner Nos.2 to 4. This Court is of the considered that
respondent No.2 being the wife of the deceased, who has not
married again after the death of the deceased is entitled for more
amount towards compensation, but the Tribunal has awarded
nearly 2/3rd share to the petitioners, who are mother and siblings
of the deceased and granted less than 1/3rd share to respondent
No.2, who is wife of the deceased. Therefore, this Court is inclined
to reapportion the shares of compensation. The total
compensation which the petitioners and respondent No.2 together
are entitled comes to Rs.9,84,200/- after enhancement granted by
this Court. This Court is of the considered opinion that the
petitioners have not filed any appeal and have not challenged the
impugned order passed by the Tribunal. Therefore, the shares of
the petitioners shall be restricted to the amounts as granted by
the Tribunal and rest of the amount shall be apportioned to
respondent No.2, who is wife of the deceased. In the said 15 MGP,J MACMA_543_2017 & MACMA_1907_2019
circumstances, petitioner No.1 is entitled for Rs.1,58,000/- and
petitioner Nos.2 to 4 are entitled for Rs.1,00,000/- each as
granted by the Tribunal. Hence, in all the petitioners are entitled
for Rs.4,58,000/- out of Rs.9,84,200/- compensation amount
granted by this Court and respondent No.2 is apportioned the
remaining amount of Rs.5,26,200/- towards her share.
24. Coming to the interest on compensation amount, the
Tribunal has awarded interest at 8% per annum on the amount of
compensation. This Court does not find any reason to interfere
into the same as the same is reasonable.
25. In the result, M.A.C.M.A.No.543 of 2017 is dismissed and
M.A.C.M.A.No.1907 of 2019 is allowed by enhancing
compensation granted by the Tribunal from Rs.6,58,000/- to
Rs.9,84,200/- along with interest as granted by the Tribunal
payable by respondent No.1 to the petitioners and respondent
No.2 as apportioned by this Court hereinabove. Respondent No.1
is directed to deposit the enhanced amount to the credit of O.P.
along with accrued interest within a period of two months from
the date of receipt of copy of this judgment. On such deposit, the 16 MGP,J MACMA_543_2017 & MACMA_1907_2019
petitioners and respondent No.2 before the Tribunal are permitted
to withdraw the entire amounts as apportioned to them by this
Court. The enhanced amount shall be paid to the petitioners and
respondent No.2 subject to payment of deficit Court fee, if any, by
them respectively. There shall be no order as to costs.
Miscellaneous applications, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI
Date: 25.01.2024 GVR
